Protest Decision Matter of: Thermo-Lay Manufacturing, LLC

Case No.: 2021-107

Posting Date: September 30, 2020

Contracting Entity: South Carolina Department of Transportation

Solicitation No.: 5400018763

Description: Truck-Mounted Asphalt Patcher

TDIGEST

Protest by low bidder of a non-responsive determination is denied. The protest letter of Thermo-

Lay Manufacturing (TLM) is included by reference. (Attachment 1)

AUTHORITY

The Chief Procurement Officer1 (CPO) conducted an administrative review pursuant to S.C.

Code Ann. §11-35-4210(4). This decision is based on materials in the procurement file and

applicable law and precedents.

1 The Materials Management Officer delegated the administrative review of this protest to the Chief Procurement Officer for Information Technology.

Protest Decision, page 2 Case No. 2021-107 September 30, 2020 BACKGROUND

Solicitation Issued: 03/06/2020 Amendment 1 Issued 03/18/2020 Intent to Award Posted 08/25/2020 Intent to Protest Received 08/26/2020 Protest Received 09/08/2020

The South Carolina Department of Transportation (DOT) issued this Invitation for Bids on

March 6, 2020 to acquire truck-mounted asphalt patching machines designed to facilitate

pavement repair of potholes, cracks and other pavement degradations. An Intent to Award was

posted to Excel Truck Group (ETG) on August 25, 2020. TLM filed an intent to protest with the

CPO on August 26, 2020 and the protest on September 8, 2020.

ANALYSIS

TLM protests that DOT erred in determining the TLM bid nonresponsive to three specifications

and questioning TLM’s ability to meet warranty requirements. DOT determined that TLM’s bid

was nonresponsive to specification Section III: 4.6 which reads:

4.6. 5 foot liquid asphalt hand sprayer w/ minimum 15 ft. hose with flush system for cleaning pump, hose, and sprayer. The tank shall have an automatic emulsion rejuvenator system to keep the emulsion oil from separating.

(emphasis added) [Solicitation, Page 13]

TLM protests:

We provide a reversible pump as a standard which allows for agitation of the emulsion oil to help prevent separation. None of our submitted materials indicates that this specification cannot be met.

[Attachment 1]

DOT responds:

This specification required an automatic emulsion rejuvenator system. Thermo-Lay Manufacturing's submission stated they would provide a pump drive directional, which did not meet the specification. Further, in their complaint they indicate they can provide a reversible pump that allows for agitation. This is not an automatic emulsion system, and does not meet the specifications of the solicitation.

[Attachment 2]

Protest Decision, page 3 Case No. 2021-107 September 30, 2020 A reversible pump is not an automatic emulsion rejuvenator. Protest denied.

DOT also found TLM nonresponsive to Section III: 5.1.2 which required:

5.1.2. The system shall have a dry radiant heat chamber, heated by two burners with vertical exhaust stacks.

[Solicitation, Page 13]

TLM protests:

For a dry radiant system, we provide 4 exhaust stacks with an automatic, electronic damper that closes when the propane burners are not engaged to prevent unnecessary heat loss. Please note photos that are of a unit we built for Clemson University in December 2019 which shows the exhaust stacks. There are 2 on each side.

[Attachment 1]

DOT responds:

Thermo-Lay Manufacturing's submission indicated they provide to [sic] (2) thermostats, but did not specify they could provide the electric dampers, as required. Further, in the equipment brochures provided, there were no vertical exhausts evident, which indicated the specification was not met. While they may be able to custom build to requirements, this was not indicated in their bid submission and we could only evaluate the information provided.

[Attachment 2]

TLM included a brochure with its bid (Attachment 3) that has eight pictures of vehicles and none

show vertical exhausts as shown in the picture included in its letter of protest, Attachment 1.

The Procurement Review Panel set the standard for review of responsiveness as follows:

This solicitation was conducted under section 11-35-1520 of the Procurement Code, which provides that award will be made "to the lowest responsive and responsible bidders whose bid meets the requirements set forth in the invitation for bids" unless there is a compelling reason to reject a bid. S.C. Code Ann. § I 1-35-1520(10) (2011). A "responsive bidder" is "a person who has submitted a bid ... which conforms in all material aspects to the invitation for bids." S.C. Code Am1. § I 1-35-1410(7) (2011). The Panel has consistently held that the responsiveness of a sealed bid must be determined at the time of bid opening solely from the four comers of the bid document. Appeal by Greenville Office Supply, Panel Case No. 2014-5 (September 10, 2014); Appeal by Two State Construction, Co., Panel Case No. 1996-2 (April 1, 1996).

See IN RE: Appeal by Butler Chrysler Dodge Jeep, LLC, Panel Case 2016-13. (emphasis added)

Protest Decision, page 4 Case No. 2021-107 September 30, 2020 Looking at the four corners of the TLM bid, it was properly determined to be nonresponsive to

this specification. This issue of protest is denied.

DOT also found the TLM bid nonresponsive to specification Section III: 6.8 which requires:

6.8. Hydraulically operated rear lift platform to secure vibratory roller mounted on right rear of the unit. Platform shall be secured in the up position for transport.

[Solicitation, Page 13]

TLM protests:

On page 7 of the specifications that we submitted; you will see that we indicated that the lift will be placed on the rear of the patch body. It is true that we offer multiple lift locations and we will put the lift in any one of four spots, behind the cab on both driver and passenger side as well as both rear locations which include the driver and passenger sides. Please observe the same truck that was built for Clemson University that shows the lift location on the rear of the patch body (this can be placed on passenger rear also). Once again, there was nothing that we submitted that indicates that we cannot meet this specification.

[Attachment 1]

DOT responds:

Thermo-Lay Manufacturing's submission listed the hydraulic life location as driver's side rear (left rear), and the photographs provided with their submission show this configuration. The specification was for the placement on the passenger side (right rear), for operator safety. Their submission did not meet specifications.

[Attachment 2]

TLM included a specification sheet with its bid which indicates that the hydraulic lift for the

roller is located on the driver side rear of the vehicle. The attached brochure also shows lift on

left rear of the vehicle. Based on the four corners of the bid, TLM’s bid was nonresponsive to

this specification. This issue of protest is denied.

DOT also included a note of concern about TLM’s ability to meet the warranty requirements of

the solicitation in its determination of nonresponsibility but did not include this as an issue of

nonresponsiveness. TLM’s protest of this issue is denied as moot.

Protest Decision, page 5 Case No. 2021-107 September 30, 2020 DECISION

For the reasons stated above, the protest of Thermo-Lay Manufacturing is denied.

For the Materials Management Office

Michael B. Spicer Chief Procurement Officer

Attachment 1

Attachment 2

Attachment 2

Attachment 3

STATEMENT OF RIGHT TO FURTHER ADMINISTRATIVE REVIEW

Protest Appeal Notice (Revised June 2019)

The South Carolina Procurement Code, in Section 11-35-4210, subsection 6, states:

(6) Finality of Decision. A decision pursuant to subsection (4) is final and conclusive, unless fraudulent or unless a person adversely affected by the decision requests a further administrative review by the Procurement Review Panel pursuant to Section 11-35-4410(1) within ten days of posting of the decision in accordance with subsection (5). The request for review must be directed to the appropriate chief procurement officer, who shall forward the request to the panel or to the Procurement Review Panel, and must be in writing, setting forth the reasons for disagreement with the decision of the appropriate chief procurement officer. The person also may request a hearing before the Procurement Review Panel. The appropriate chief procurement officer and an affected governmental body shall have the opportunity to participate fully in a later review or appeal, administrative or judicial.

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LEGAL REPRESENTATION: In order to prosecute an appeal before the Panel, business entities organized and registered as corporations, limited liability companies, and limited partnerships must be represented by a lawyer. Failure to obtain counsel will result in dismissal of your appeal. Protest of Lighting Services, Case No. 2002-10 (Proc. Rev. Panel Nov. 6, 2002) and Protest of The Kardon Corporation, Case No. 2002-13 (Proc. Rev. Panel Jan. 31, 2003); and Protest of PC&C Enterprises, LLC, Case No. 2012-1 (Proc. Rev. Panel April 2, 2012). However, individuals and those operating as an individual doing business under a trade name may proceed without counsel, if desired.

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